Saturday, June 9, 2012

Once more we are looking
for a Chief Justice.What
guidelines does the Constitution give for the process?The guidelines are both simple and
difficult to follow.

The simple part consists
of the legal qualifications which the Constitution prescribes.“No
person shall be appointed Member of the Supreme Court or any lower collegiate
court unless he is a natural-born citizen of the Philippines. A Member of the
Supreme Court must be at least forty years of age, and must have been for
fifteen years or more, a judge of a lower court or engaged in the practice of
law in the Philippines.”These
are easily verifiable.

The more difficult part
is determining the character of the person. “A
Member of the Judiciary must be a person of proven competence, integrity,
probity, and independence.” Of these four guidelines for measuring
characterthe simplest perhaps is
the requirement of competence. This can be determined by an examination of the
public record of the person either as a judge or as a practicing lawyer.Measuring “probity, integrity, and
independence” is more tricky.

The responsibility for
measuring these character qualifications has been given to the Judicial and Bar
Council (JBC).The JBC
as a screening body is a departure from the old system when the Senate had that
responsibility.Looking back, my
view is that up until the declaration of martial law the Senate had succeeding
in ensuring that we had Supreme Court justices who possessed “competence, probity,
integrity and independence.”The
old system gave us justices who were pillars in the legal profession.

Since 1987 we have
experimented with the JBC.In the
absence of rules on how the JBC should operate, the JBC itself has experimented
with different systems.Currently,
in an attempt to respond to the clamor for transparency, it has made a
decision, it is reported, that candidates for the judiciary must waive the
secrecy of their bank accounts.How legitimate is that move?

If by this requirement
the JBC is saying that a candidate who fails to waive the secrecy of his or her
bank deposits is automatically disqualified, my view is that it amounts to an
illegitimate attempt to add to the qualifications listed in the Constitution.Only a constitutional amendment can add
to those qualifications.If,
however, voluntary waiver or non-waiver will be considered merely as evidence
for weighing probity and integrity, this can be legitimately done.It would not amount to additional
qualification but an application merely of existing requirement.

The JBC, however, is also
weighed down by being suspected of lacking independence.This suspicion arises from the
composition of the body.The JBC
is composed of the “Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative
of the private sector.”The
last four are called regular members.
They are appointed by the President with the consent of the Commission on
Appointments.Of the seven members
of the JBC, therefore, the President has a hand in the choice of five.It is therefore not difficult to
imagine how the President can have a great influence on the formation of the
exclusive list prepared by the JBC from which the President must choose who to
appoint to the Court.

The Supreme Court itself
can also have a strong influence on who will be chosen as justice.This factor had a great bearing in the
saga of former Chief Justice Corona.

It will be recalled that
the position of Chief Justice was vacated within two months from the
presidential election when Chief Justice Reynato Puno reached retirement
age.In Article VII of the
Constitution, which contains the extent and limits of presidential power, there
is a provision which prohibits the president from making permanent appointments
to vacancies during those two months except to executive positions when
urgently needed.

In 1998 the Supreme Court
had ruled that the President may not make appointments to the judiciary during
the prohibited period.But in 2010
the Court ruled that the prohibition did not apply to appointments to the
Supreme Court because Article VIII required that Supreme Court vacancies had to
be filled within ninety days -- as if the Court would not be able to survive
without a Chief Justice!And to
think that the next President would still have had forty five days to satisfy
the ninety day requirement!Looking
back, former Chief Justice Corona probably rues that decision.

The Supreme Court at any
particular time is sometimes referred to by the name of the current Chief
Justice.In 2010 we had the Puno
Court but which was suspected of being in fact an Arroyo Court, thanks to the
appointing system which had allowed her to fill the Court with her own people.
During the period when the controversy about the President's appointing
authority was being debated in media, the gut feel of many was that the majority
of the Court would vote the way they ultimately did. Thus the decision did not
come as a surprise.But it
developed into a 2012 tragedy from which we should learn valuable lessons